Technological advances in assisted reproduction over the past decades have resulted in the modern family confronting important and potentially gut-wrenching planning issues pertaining to the creation of children and the preservation of genetic materials relating to the creation of children.
Generally, assisted reproduction refers to conception by any means other than sexual intercourse. These modes of conception are often referred to collectively as “assisted reproductive technologies” (ART). The two most critical aspects of integrating ART into estate planning involve (1) defining parentage and descendants for legal purposes; and (2) determining who can control the disposition of frozen genetic material.
The widespread use of ART has resulted in “parentage” being divided into three distinct types: (1) biological or genetic parentage—contributing the genetic materials to the child (i.e., sperm or egg); (2) gestational parentage — carrying and bearing the child; and (3) functional parentage — raising the child following birth. Careful attention must be paid to how parentage is defined and how those definitions impact the children conceived through assisted reproduction.
For example, questions arising in an estate planning context could include:
Would a genetic child of a married couple be included for inheritance purposes if the child was born to a gestational carrier? What if the couple was not married?
Would a genetic child of one member of a same-sex couple be considered the child of the other member of the couple?
What is the inheritance status for a child born because a single man chooses to use a surrogate to carry a child with the intention to raise the resulting child as a single father?
For purposes of a particular estate planning instrument, should a child be allowed more than two parents?
To understand the various legal issues presented by ART, it is important to understand some of the basic science and background on the most common ART procedures.
The Birds and the Bees. As most of us were taught in a biology class at some point in school, creating a human child requires two single-cell gametes: an egg cell and a sperm cell. Once those two cells fuse at conception, they become a zygote (i.e., a fertilized egg). Once the zygote cell divides, the resulting collection of cells becomes an embryo. If the embryo is implanted in a female’s uterus (which naturally occurs about three days after zygote formation), then after approximately eight weeks of gestation, the embryo becomes known as a fetus. Approximately nine months (or thirty-eight weeks after conception) assuming a full gestational period, a baby is born.
Frozen Genetic Material. The first successful use of frozen sperm to achieve pregnancy was reported in 1953. And by the 1980’s, the availability of frozen sperm and the concept of single mothers by choice was introduced and has continued to gain popularity.
Artificial or Assisted Insemination. Artificial insemination involves sperm being transferred to a woman’s uterus or cervix. Artificial insemination was the first ART to become widely used, and due to the low cost and simplicity of the procedure, it remains popular. Artificial insemination often involves the use of a couple’s own genetic material, but it can also utilize sperm from a donor. For public policy reasons, states are increasingly making artificial insemination performed by someone other than a licensed physician a crime. In Georgia, for example, it is a felony.
In-Vitro Fertilization (IVF). IVF refers to any procedure that involves conception outside of the human body, followed by implantation of one or more embryos into the carrier’s uterus. IVF may utilize the genetic material of both of the intended parents, or that of one or two third-party donors. IVF can occur using the implantation of fresh embryos, or of embryos that have been frozen. The first birth of a child derived from a frozen embryo was reported in 1984. Based on preliminary data, over 208,000 IVF or similar procedures were administered in the United States in 2014, resulting in over 57,000 deliveries and over 70,000 live born infants. These births account for approximately 1.6% of all infants born in the United States in 2014. Major technology companies have made headlines recently by paying for their female employees to freeze their eggs for later use in IVF procedures.